When Johnny Duhan got the latest missive in a long-running saga, he wondered whether justice was a thief.
Over the last 12 years, Duhan has been on an odyssey through the legal process. The singer/ songwriter, best know for his song ‘The Voyage’, spent eight of those years chasing a legal entitlement, and the last four in pursuit of a solicitor whom he believes didn’t represent his best interests.
In that time, he has learnt a lot about the law. He has represented himself in front of a tribunal, up against a senior counsel.
He has come to regard with great scepticism the Law Society’s role as a policing body. And he now wonders whether even when somebody wins a long battle against a member of the solicitors’ profession, if “justice is a game”, as his fellow songwriter Bob Dylan put it in ‘Hurricane’.
Solicitors are targeted for a high volume of vexatious complaints. The nature of their work ensures that when a client loses a major case — often one in which they have invested in emotionally as well as financially — somebody has to be blamed. The ire felt by a losing litigant can then focus on his or her own representative, and the emotional investment in a case is withdrawn and reinvested in chasing the solicitor. There are, however, plenty of complaints that have a sound basis.
In the year to the end of Aug 2012, the Law Society dealt with 2,453 complaints. One issue that often raises its head is the matter of fees. The legal business is notorious for the level of fees charged, and this is often a source of complaint.
Johnny Duhan’s experience concerned fees, and the allegation that his solicitor was more concerned with making as much as possible for himself, whatever the consequences for his client.
Duhan retained Dublin solicitor Eddie McGarr in 2001. The pair met in a café, and Duhan outlined his issue. His song, ‘The Voyage’, had been used in a video production in the USA featuring The Three Tenors. He had received no royalties on what was a lucrative venture.
For a songwriter like 63-year-old Duhan, royalties often keep the wolf from the door in the lean years. His complaint was with the production company responsible for the video. Sales of the video and CD exceeded 500,000 copies in the USA.
McGarr agreed to take on the case. Years later, he would briefly claim that some weeks after the initial meeting, he fulfilled his obligation to give Duhan an estimate of his fees. Solicitors are required under Section 68 of the Solicitor’s Act 1994 to provide clients with an estimate at the earliest possible opportunity.
McGarr would go on to swear on affidavit that he sent Duhan a letter dated Sept 26, 2001 in compliance with the act. This would be a major bone of contention between the two parties, and would ultimately provide crucial evidence to a Law Society inquiry. Yet no such letter was ever sent. The case dragged through the long legal process for over six years. In 2007, there was talk of a settlement. Duhan wanted to know how much he would have to hand over to his solicitor. He requested this information at least six times, yet no response was forthcoming. The singer was flying blind. If he was to accept a settlement offer, would it all be eaten up by his own legal fees?
On Jan 15, 2008, he emailed his solicitor: “There are literally dozens of emails to you in my file and you never answer my phonecalls so I haven’t a clue if you’re still engaged in my case.”
On March 12, 2008, a firm offer was made in settlement of Duhan’s claim. Fifty grand, all in. McGarr contacted his client, and told him that “all-in means you have to pay your costs out of the money, the costs will not be small”.
Two days later, Duhan phoned the solicitor’s office and spoke to McGarr’s son, Simon, who told him his father’s costs might eat up the whole settlement.
“Jesus, it’s one thing to be ripped off by the defendants, another to be cleaned out by one’s own legal team and the awful thing is that you didn’t even have the common courtesy to tell me yourself. But then, for the past few years, you haven’t been extending to me the most basic form of common decency,” he emailed McGarr later.
This went on for another eight months. On Nov 27, 2008, Duhan finally got an answer as to how much his solicitor’s costs would be if they settled the case and how much to carry on with litigation. The figure was €16,131.50 to settle and over €50,000 if litigation was continued. Yet, despite the precise figure offered, McGarr again emphasised this was “an estimate”.
In a subsequent Solicitor’s Disciplinary Tribunal, Duhan claimed his solicitor didn’t come clean on the costs as he was intent on pursuing the case in court, ultimately meaning, in the event of victory, costs would be awarded to Duhan. Thus, the singer’s solicitor would be in a position to present the opposite side with a much bigger bill for his services.
Duhan however, didn’t have any confidence in the case his solicitor was presenting. If the case was lost, as was quite possible, Duhan would be left with his bill for 50 grand for his own solicitor and a large legal fee from the video company.
McGarr denied he was motivated by the potential size of his own fee, rather than his client’s best interests.
Eventually, they parted company. Duhan managed to receive a partial settlement on his claim. But the experience with his solicitor had left him angry at the treatment he believed he had been subjected to. He contacted the Law Society, where he was told a complaint could be made through its complaints department.
Duhan filed the complaint without any professional help. He told how McGarr had continuously refused to give him an estimate of the legal costs, and how this affected his ability to decide on the best course of action in receiving compensation for his royalties.
The complaints department wrote to McGarr, requesting information. He didn’t satisfy their request for proof that he had outlined the cost to the client at the earliest stage. On Dec 13, 2011, a letter was dispatched asking the solicitor to “please send a copy of the letter sent to Mr Duhan in accordance with Section 68 of the Act”.
McGarr replied that he didn’t see the requirement for it, but “notwithstanding, I enclose a copy of the letter of September 2001 to Mr Duhan in accordance with Section 68, together with the original estimate of fees”.
Having received the letter, the Law Society saw no further basis for Duhan’s complaint. Here was evidence that the solicitor had told his client at the outset how much the whole thing would cost.
The Law Society informed Duhan it could do no more. Most people might have stopped there, laid low with a feeling of injustice, but acknowledging the battle was lost.
Not Johnny Duhan. He did his homework, and saw he could bring a case to the Solicitor’s Disciplinary Tribunal. After encountering difficulty in retaining a solicitor, he conducted the case himself. Affidavits were sworn and exchanged. McGarr’s affidavit contained the assertion that he had sent the letter of Sept 2001.
However, Duhan challenged this assertion, and pointed out that it appeared to come out of the blue in 2011, 10 years after it was allegedly written. He also pointed out inconsistencies in the alleged letter which suggested it may have been backdated 10 years.
Eventually, on his fourth replying affidavit, McGarr accepted that the letter he had presented to the Law Society was not as it appeared. “I have reviewed the issue of the letter of 26th September 2001. It is in the form of my usual letter I send to clients but that is insufficient for proof. I do not share the applicant’s suspicions about the point size of the type on the date of that letter, but I no longer have a conviction that I sent him a Section 68 letter. I believe I did not. I do not have a record book of ‘post sent’ or an equivalent record for that period and cannot prove what the applicant denies.”
So, the letter that had popped up out of the blue to kill the complaint to the Law Society was now exposed as entirely inaccurate. He had also sworn a false affidavit, even if he claimed he did so inadvertently. Armed with this knowledge, Duhan got back onto the Law Society, to let them know that their dismissal of his complaint was based on wrong information. He claimed that the Section 68 letter represented perjury.
On Aug 21, last year, the complaints department of the Law Society replied to Duhan’s assertions: “As I’m sure you are aware, perjury is a criminal offence and not something we can investigate by way of a complaint.”
The society expressed no concern it had ruled on a complaint on what it now knew to be false information. In effect, it washed its hands of the whole affair. Duhan’s case was heard by the Disciplinary Tribunal over three days in June and July of this year. McGarr was represented by a senior counsel. Duhan represented himself, with the assistance of his daughter, Niamh.
Usually, applications are made to the tribunal by the Law Society on the basis that the society believes a solicitor has a case to answer of alleged misconduct. The public can also bring cases in some instances. About two thirds of inquiries conducted by the tribunal are brought by the Law Society. It is highly unusual for a member of the public to go to the inquiry and represent him or herself.
During McGarr’s evidence, Duhan addressed him about the failure to tell him the vital information about fees right through 2008. He told the solicitor, he was “under your clutches, the way my wife couldn’t sleep at night”.
McGarr denied any wrongdoing. He maintained his only motivation was to get the best deal for his client in court, and he hadn’t at the outset been interested in pursuing a settlement. Summing up his complaint, Duhan told the tribunal: “To write a real song you must go to the heart and soul of the lyric. What I have tried to do in this tribunal is bring the same level of truth to these proceedings.”
On July 18, the tribunal found McGarr guilty on three counts of misconduct. The first related to McGarr’s “failure to supply Mr Duhan with an estimate of his costs in March 2008, and failure to provide his client with written detains of the actual charges”.
The second was for “failure to respond to correspondence including correspondence which were crucial and significant to the applicant”.
The tribunal also found that: “The respondent solicitor misled the Law Society that he had sent a Section 68 letter when it is now accepted by the respondent solicitor that he had not and in so doing caused the Law Society to dismiss the complaint of the applicant.”
As a sanction he was ordered to pay €7,500 to Duhan along with €600 expenses. After a torturous journey through the legal system, Duhan thought it was all over.
Then, on Oct 3, he received a letter from the solicitor, enclosing the €600 but claiming that the main award would be set against fees. “It should be noted that the tribunal made out no order setting out any particular time within which such payment should be made,” the solicitor wrote.
Also, he pointed out he still didn’t have a full bill of costs. Six years after Duhan began requesting it, and after a lengthy disciplinary process where the failure to provide the bill was the issue, there is still no final figure.
“Due to the complexity of the case that bill of costs has not yet been finalised by our legal cost accountants,” McGarr wrote. Johnny Duhan is stumped by the whole affair.
“In 2001 I hired a solicitor to help me reach a settlement in a copyright infringement case,” he told the Irish Examiner.
“It was a simple enough case that should have been resolved in a year or two at most. Twelve years on — after the anxiety of having to take the case on myself and resolve the main issue in the High Court and follow it up by taking another action against my solicitor all the way to a tribunal that found him guilty of all the main charges I brought against him — the same solicitor is still unwilling to let go, and is intent on coming after me for a fee for what amounts to his putting my family and I through hell.”
Eddie McGarr did not return calls made to his office at McGarr Solicitors.
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